Citation Nr: 0116987
Decision Date: 06/25/01 Archive Date: 07/03/01
DOCKET NO. 96-27 856 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to a rating in excess of 10 percent for a right
ankle injury.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
M. Kim, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1973 to
July 1975.
This appeal is before the Board of Veterans' Appeals (Board)
from an April 1996 and subsequent rating decisions from the
Waco, Texas, Department of Veterans Affairs (VA) Regional
Office (RO) that continued a 10 percent rating for a right
ankle injury.
REMAND
During the pendency of this appeal, there has been a
significant change in the law. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). This
change in the law is applicable to all claims filed before
the date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096 (2000). See also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2096-99 (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the VARO has not yet considered whether any additional
notification or development action is required under the
Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the veteran if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown , 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Because the effect of the veteran's right ankle disability
upon his employability is key to the analysis of entitlement
to an increased rating, this case must be remanded to obtain
the veteran's employment history, Social Security Disability
(SSD) and additional VA medical records, and a current VA
examination. The Secretary shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate the claimant's claim for a benefit under a law
administered by the Secretary. Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096,
2097-98 (2000) (to be codified at 38 U.S.C. § 5103A).
The VA has a duty to assist the veteran in obtaining
employment records to confirm his work status. The veteran
was hospitalized from December 1995 to April 1997 for
treatment of chronic paranoid schizophrenia, and a June 1997
phone contact report shows that he had worked as a runner in
a VA incentive program. At VA clinic visits from April 1998
to January 1999, the veteran reported going back and forth
between the VA incentive program and a VA sheltered workshop
program where he earned income counting wooden pieces and
bottles of glue into bags for use in occupational therapy
programs. Since 1994, it is unclear how many hours per week
he has worked or how much income he has earned and whether he
has had any work absences due to his right ankle disability
or another disability. Under 38 C.F.R. § 4.16(a) (2000),
marginal employment shall not be considered substantially
gainful employment. For purposes of this section, marginal
employment generally shall be deemed to exist when a
veteran's earned annual income does not exceed the amount
established by the U.S. Department of Commerce, Bureau of the
Census, as the poverty threshold for one person. Marginal
employment may also be held to exist, on a facts found basis
(includes but is not limited to employment in a protected
environment such as a family business or sheltered workshop),
when earned annual income exceeds the poverty threshold.
Consideration shall be given in all claims to the nature of
the employment and the reason for termination. Id. The
Secretary shall make reasonable efforts to obtain relevant
records (including private records) that the claimant
adequately identifies to the Secretary and authorizes the
Secretary to obtain. Nothing precludes the Secretary from
providing such other assistance under subsection (a) to a
claimant in substantiating a claim as the Secretary considers
appropriate. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be
codified at 38 U.S.C. § 5103A).
The VA has a duty to assist the veteran in obtaining his SSD
records and additional VA medical records. A March 1990
notice from the Social Security Administration shows that the
veteran received SSD income. Yet, the record does not show
that the veteran's SSD records, including medical records,
were obtained or confirmed as unavailable. See Murincsak v.
Derwinski, 2 Vet. App. 363, 370 (1992). This duty is neither
optional nor discretionary. Littke v. Derwinski, 1 Vet. App.
90 (1990). Although the veteran reported monthly visits to a
VA podiatrist, the record does not show that VA medical
records since February 1999 were obtained or confirmed as
unavailable. Any VA medical records are deemed to be
constructively of record in proceedings before the Board and
should be obtained prior to further review of the claims
file. Bell v. Derwinski, 2 Vet. App. 611 (1992).
The VA has a duty to assist the veteran in obtaining a VA
examination. The Secretary shall treat an examination or
opinion as being necessary to make a decision on a claim if
the evidence of record before the Secretary, taking into
consideration all information and lay or medical evidence
(including statements of the claimant) (A) contains competent
evidence that the claimant has a current disability, or
persistent or recurrent symptoms of disability; and (B)
indicates that the disability or symptoms may be associated
with the claimant's active military, naval, or air service;
but (C) does not contain sufficient medical evidence for the
Secretary to make a decision on the claim. Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, 2097-98 (2000) (to be codified as amended at
38 U.S.C. § 5103A). A VA examination is necessary to
determine the current level of impairment attributable to the
right ankle disability because the last VA examination took
place in January 1999, over two years ago. To constitute a
useful and pertinent rating tool, rating examinations must be
sufficiently contemporaneous to allow adjudicators to make an
informed decision regarding the veteran's current level of
impairment. Caffrey v. Brown, 6 Vet. App. 377 (1994).
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should ask the veteran to
provide the names, addresses, and
approximate dates of all employment since
1994, and he should also be requested to
submit his W-2 forms since 1994. After
securing any necessary authorizations or
releases, the RO should request and
associate with the claims file the
veteran's employment records since 1994
from the veteran's employer(s). Failures
to respond or negative replies should be
noted in writing and also associated with
the claims folder.
2. The RO should ask the veteran to
provide the names, addresses, and
approximate dates of treatment of all
health care providers, VA and non-VA,
inpatient and outpatient, who have
treated him for a right ankle disability
since 1994. After securing any necessary
authorization or medical releases, the RO
should request and associate with the
claims file copies of the veteran's
complete treatment reports from all
sources, including VA treatment records
since February 1999 and SSD and related
medical records, which have not been
previously been secured. Failures to
respond or negative replies should be
noted in writing and also associated with
the claims folder.
3. The veteran should be afforded the
appropriate VA examination to determine
the severity of his right ankle
disability. Any further indicated
special studies should be conducted.
Failure of the veteran to report for a
scheduled examination without good cause
could result in the denial of a claim.
38 C.F.R. § 3.655 (2000). The claims
file and a separate copy of this remand
should be made available to and reviewed
by the examiner(s) prior and pursuant to
conduction and completion of the
examination and the examination report
must be annotated in this regard. The
examiner(s) should take specific note of
the veteran's reported and documented
employment and medical history since
1997.
The examiner should then offer a medical
opinion as to: a) a full description of
the effects of the right ankle disability
upon the veteran's ordinary activity;
b) whether pain could significantly limit
functional ability during flare-ups or
when the right ankle is used repeatedly
over a period of time; c) loss of range
of motion of the right ankle portrayed in
terms of the degrees of additional range
of motion loss due to pain on use or
during flare-ups; and d) if present, note
crepitation, less or more movement than
normal, weakened movement, excess
fatigability, incoordination and impaired
ability to execute skilled movement
smoothly, pain on movement, swelling,
deformity, atrophy of disuse, instability
of station, disturbance of locomotion,
and interference with sitting, standing,
and weight-bearing. Any opinions
expressed by the examiner must be
accompanied by a complete rationale.
DeLuca v. Brown, 8 Vet. App. 202, 206
(1995).
4. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000) is completed. In particular, the
RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4
of the Act (to be codified as amended at
38 U.S.C. §§ 5102, 5103, 5103A, and 5107)
are fully complied with and satisfied.
Any binding and pertinent court decisions
that are subsequently issued also should
be considered. The RO should review the
requested examination report and medical
opinion to ensure that they are
responsive to and in complete compliance
with the directives of this remand, and
if they are not, the RO should implement
corrective procedures. Stegall v. West,
11 Vet. App. 268 (1998).
5. After undertaking any development
deemed essential in addition to that
specified above, the RO should
readjudicate the claim for a rating in
excess of 10 percent for a right ankle
disability based upon the entire evidence
of record. All pertinent law,
regulations, and Court decisions should
be considered. If the veteran's claim
remains in a denied status, he and his
representative, if any, should be
provided with a supplemental statement of
the case, which includes notice of any
additional pertinent laws and regulations
that were used, and a full discussion of
action taken on the veteran's claim. The
RO's actions should follow the Court's
instructions detailed in Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). The
veteran has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999). A reasonable
period of time for a response should be
afforded.
6. Thereafter, if appropriate, the case
should be returned to the Board for
further appellate review. By this
remand, the Board intimates no opinion as
to any final outcome warranted. No
action is required of the veteran until
he is notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).